Director of Public Prosecutions (Cth) v Ryan Larson (a pseudonym)[1] , Director of Public Prosecutions (Cth) , Jonathon Farmer (a pseudonym) , Director of Public Prosecutions (Cth) , Saul Reese (a pseudonym) ,
[2017] VSCA 292
•17 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0117
S APCR 2017 0123
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Applicant |
| v | |
| RYAN LARSON (a pseudonym)[1] | First Respondent |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Applicant |
| v | |
| JONATHON FARMER (a pseudonym) | Second Respondent |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Applicant |
| v | |
| SAUL REESE (a pseudonym) | Third Respondent |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Applicant |
| v | |
| GARRY MENDEZ (a pseudonym) | Fourth Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the respondents.
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| JUDGES: | MAXWELL P, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 August 2017 |
| DATE OF JUDGMENT: | 17 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 292 |
| RULING APPEALED FROM: | DPP (Cth) v [Farmer & Ors] (Unreported, County Court of Victoria, 29 May 2017) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Admissibility – Whether improperly or illegally obtained – Customs inspection – Mobile phones carried by passenger – Whether goods ‘subject to the control of the Customs’ – Whether passenger’s carriage of personal effects constitutes ‘export’/‘import’ – Contents of phones copied by Customs without prior examination – Non-compliance with statute and operational instructions – Exclusion of improperly obtained evidence – Gravity of impropriety – Judge erred in concluding that phones not examinable by Customs – Evidence lawfully obtainable – Substantial probative value – Nature of offence – Appeal allowed – DPP v Marijancevic (2011) 33 VR 440 considered – Evidence Act 2008 s 138 – Customs Act 1901 (Cth) ss 30, 68, 71, 71AAAB, 186, 186A.
CRIMINAL LAW – Case stated – Questions of law reserved – Statutory construction – Meaning of ‘import’ – Whether ‘import’ distinct from ‘importation’ – Meaning of derivatives – Presumption of consistent usage – ‘Importation’ encompasses recovery of goods – Reserved question asked how jury should be directed – Inappropriate for appeal court to advise on jury directions – Customs Act 1901 (Cth) s 233BABAD.
WORDS AND PHRASES – ‘goods subject to the control of the Customs’, ‘import’, ‘importation’, ‘export’, ‘exportation’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Orr QC with Mr P J Doyle | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
| For the First Respondent [Ryan Larson] | Mr M E Dempsey | Tony Hargreaves and Partners |
| For the Second Respondent [Jonathon Farmer] | Mr O P Holdenson QC with Mr G Hill | Pica Criminal Lawyers |
| For the Third Respondent [Saul Reese] | No appearance | |
| For the Fourth Respondent [Garry Mendez] | Mr J D Williams with Mr A Imrie | Victoria Legal Aid |
MAXWELL P
BEACH JA:
We have had the considerable advantage of reading a draft of the reasons for judgment of Priest JA. We gratefully adopt his Honour’s comprehensive account of the relevant facts and circumstances and of the issues which fall for determination. For reasons which follow, however, we have reached different conclusions in respect of the two matters before the Court.
In relation to the application for leave to appeal, we would grant leave to appeal and allow the appeal. We would set aside the judge’s order excluding the relevant evidence and, in its place, order that the application for exclusion be refused. In relation to the case stated, we would give the same answer as his Honour to question 2 but a different answer to question 1.
We begin, as the parties did, with the interlocutory appeal.
A. THE INTERLOCUTORY APPEAL
As Priest JA explains, the Director seeks to set aside the judge’s decision, made under s 138 of the Evidence Act 2008, to exclude evidence of the content of Farmer’s mobile phones which was downloaded and copied by Customs officers on 14 and 21 April 2013 respectively. When Farmer left Australia on 14 April 2013, he was found by Customs to be carrying an Apple iPhone. (Like Priest JA, we will refer to this as the ‘outgoing examination’). On his return on 21 April, he was found to be carrying the same iPhone, together with a second Apple iPhone (the ‘incoming examination’). It is the content of these phones that is the subject of the application for leave to appeal.
The Director advanced nine proposed grounds of appeal. Ground 1 concerned the judge’s construction of the relevant provisions of the Customs Act 1901 (Cth) (the ‘Act’) and whether those provisions gave lawful authority to Customs officers to examine Farmer’s phones. Grounds 2–9 concern the decision actually made by the judge under s 138 of the Evidence Act 2008 to exclude the evidence found on Farmer’s phones.
Ground 1: did Customs officers have authority to examine Farmer’s mobile phones?
Section 186(1) of the Act permits Customs officers to examine ‘any goods subject to the control of the Customs’.[2] The central issue before the judge, and again on this application, was whether Farmer’s mobile phones constituted ‘goods subject to the control of the Customs’ at the time of either the outgoing or the incoming examination. The judge concluded that the phones were not ‘goods subject to the control of Customs’ on either occasion and, hence, that the officers had no lawful authority either to examine the phones or to copy their contents.
[2]The Act was later amended by the Customs and Other Legislation Amendment (Australian Border Force) Act 2015 (Cth) (‘Amending Act’) to omit references to ‘the control of the Customs’ and substitute them with ‘customs control’: see ss 51, 642, 644, 645 of the Amending Act.
Critical to the resolution of this issue is the construction of ss 30, 68, 71 and 71AAAB of the Act. More specifically, it is necessary to construe the undefined terms ‘import’, ‘export’, ‘importation’ and ‘exportation’ as used in those provisions.
Section 30 of the Act governs when, and for how long, goods are ‘subject to the control of the Customs’. The provision relevant to the outgoing examination is s 30(1)(d), which relevantly provides as follows:
as to all goods for export (including goods delivered for export under s 61AA of the Excise Act 1901) — [they are subject to the control of the Customs] from the time the goods are made or prepared in, or are brought into, any prescribed place for export, until their exportation to a place outside Australia.
The judge concluded that the ordinary and natural meaning of the word ‘export’ was to ‘send goods or services to another country for sale’.[3] Similarly, his Honour held, the ordinary meaning of the related noun ‘export’ was ‘a product or service sold abroad’.[4] His Honour continued:
Having considered the context of the Act, including the extrinsic materials to which I have been referred, in my view, there is nothing to support the proposition that the word ‘export’ in s 30(1)(d) must be accorded a broader definition than its ordinary meaning. It seems to me that the original purpose of the phrase ‘all goods for export’ in s 30, when it was inserted in the 1910 amendment to the Act, was to provide Customs with powers in respect of goods which were being sent to other countries or states, in the context of trade and commerce.[5]
[3]Ruling of his Honour Judge Allen (County Court of Victoria, 29 May 2017) [26] (‘Ruling’).
[4]Ibid.
[5]Ibid [28] (emphasis added).
The provision relevant to the incoming examination is s 30(1)(ad). Before referring to that provision, it is necessary first to refer to s 68, which requires the owner of goods to which the section applies to enter the goods for home consumption or for warehousing. As s 68(3A) makes clear, an entry of goods for home consumption is made ‘by communicating to Customs an import declaration in respect of the goods’.
Importantly for present purposes, s 68(1)(d) excludes from the reach of those obligations
goods that are accompanied or unaccompanied personal or household effects of a passenger, or a member of a crew, of a ship or aircraft.
That exemption is in turn limited by s 68(4), which provides:
For the purposes of paragraph (1)(d), goods:
(a)in quantities exceeding what could reasonably be expected to be required by a passenger or member of the crew of a ship or aircraft for his or her own use;
…
are not included in the personal or household effects of a passenger or crew member.
Section 30(1)(ad) provides as follows:
As to goods referred to in paragraph 68(1)(d) — [they are subject to the control of the Customs] from the time of their importation until they are delivered into home consumption in accordance with an authority under s 71 or they are exported to a place outside Australia, whichever happens first.
It was common ground before the judge, and again on this application, that the mobile phones in Farmer’s possession constituted ‘accompanied personal effects of a passenger’, within the meaning of s 68(1)(d), and that Farmer as the owner of those goods was therefore exempted from the obligations imposed by s 68. (In what follows, we will refer only to ‘personal effects’ in connection with s 68(1)(d)).
The judge concluded that the only personal effects caught by s 30(1)(ad) were personal effects which were required to be delivered into home consumption in accordance with an authority under s 71. His Honour accepted a defence submission that the only goods which required such an authority were goods which ‘must be declared on an incoming passenger card because they may be prohibited, dutiable or excisable’.[6] Since the phones did not need to be declared for any of those reasons, his Honour held, they fell outside the scope of s 30(1)(ad) and, hence, were not ‘goods subject to the control of the Customs’.[7]
[6]Ruling [11(a)(ii)].
[7]Ibid [11(a)(ii)], [39]–[40].
The respondents to the application for leave did not seek to uphold either basis of his Honour’s ruling. That is, they did not seek to maintain that the phrase ‘goods for export’ in s 30(1)(d) was limited to goods being sent to another country for sale. Nor did they seek to defend the proposition that the requirement for an authority under s 71 had the effect of excluding Farmer’s phones from the scope of s 30(1)(ad).
Instead, they submitted that the phones were neither ‘exported’ (when Farmer left Australia) nor ‘imported’ (when he arrived back in Australia), by reason that the movement of his phones was ‘merely incidental’ to his own movement. They contended that the words ‘import’ and ‘export’
[have] regard to the purposes for which goods are used (especially for sale or use) and connotes a one–way journey either from Australia (export) or into Australia (import), where the movement of goods is the primary objective. The movement of a passenger’s personal goods outside Australia (when those goods will be retained by the person) is not an ‘export’, and the return into Australia of a person’s personal goods is not an ‘import’. In each case, the movement of goods is merely incidental to the movement of the passenger.[8]
[8]Emphasis added.
For her part, the Director submitted that the terms ‘import’ and ‘export’ as used in the Act were not confined to the movement of goods for commercial purposes. The Director submitted that s 30(1)(d) applied to all goods taken from a prescribed place of export (in this case, Melbourne Airport)[9] to a place outside Australia; and that s 30(1)(ad) applied to all personal effects brought into Australia by an incoming passenger.
[9]See Customs Regulations 1926 (Cth) r 23.
For the reasons that follow, the Director’s submissions must be upheld. The importations and exportations referred to in ss 30(1)(ad) and (d) of the Act do not need to possess some element of trade or commerce to come within those provisions. Nor is the carriage of goods excluded from the operation of those provisions by reason that the movement of the particular goods can be described as ‘merely incidental to the movement of a passenger’.
The meaning of ‘import’ and ‘export’
As Priest JA notes, the foundational submission for the Director was that the words ‘export’ and ‘import’ should be given their ordinary and natural meaning. Those meanings were said to be as follows:
A good is imported if it is brought into the country from outside of the country, and a good is exported if it is carried out or taken away from the country.
Priest JA has set out in his reasons the definitions of ‘import’ and ‘export’ given by a range of dictionaries. With the exception of the Macquarie Dictionary, all of those dictionary extracts support the Director’s submission. That is, the primary meaning given for ‘export’ is ‘carry out of a place’ or ‘take away’ or ‘carry off’; and the primary meaning given for ‘import’ is ‘to bring in; to introduce from abroad’. It is unsurprising that this should be so, given that each of the words derives from the Latin word ‘portare’, meaning to carry.[10] Thus, ‘export’ means carry out, ‘import’ means carry in.
[10]See R v Mohammadi (2006) 175 A Crim R 384, 389–90 [20].
Certainly, the dictionaries give other meanings, which refer to the taking or carrying of ‘commodities’ and to the carriage of goods ‘for the purposes of commerce or trade’. In common parlance, moreover, the words ‘export’ and ‘import’ are very often used to refer to commercial dealings. But it is plain enough that the words themselves carry no such commercial connotation. They simply connote the taking of goods out of a country or the bringing of goods into a country, as the case may be.
As courts have consistently held since the earliest days of this (and comparable) legislation, there is no reason to think that the legislature intended any narrower meaning.[11] If there were any doubt, the fact that the Act covers a wide range of prohibited imports makes perfectly clear that the legislative concern is with the carriage of goods and the nature of the goods carried, irrespective of whether any commercial aspect is involved.
[11]See, eg, Muller v Baldwin (1874) 9 LR QB 457, 461; Lyons v Smart (1908) 6 CLR 143, 150; Fox v Kooman [1919] 121 LT 575, 577; Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131, 136, 139; Election Importing Co Pty Ltd v Courtice (1949) 80 CLR 657, 661–2; He Kaw Teh v The Queen (1985) 157 CLR 523, 595–6.
It is here, with respect, that the judge fell into error. As noted earlier, his Honour concluded that the ordinary meaning of ‘export’ was a commercial meaning, that is, the taking or sending of goods abroad for sale. On that view, it became necessary for his Honour to ask whether there was anything in the Act which warranted a broader meaning. He was not persuaded that there was.
In our view, the starting point is that the words should be given their ordinary and natural meaning, as set out above. Those who contend for the adoption of a narrower meaning — as the respondents do — need to explain why a departure from the ordinary meaning is required, or justified, by the legislative context. No such justification has been identified.
As noted earlier, the respondents submit that the movement of goods which ‘is merely incidental to the movement of the passenger’ does not constitute either an ‘export’ or an ‘import’ of those goods, as the case may be. According to the written submission:
There is no suggestion that [Farmer] ever intended to transfer or dispose of his mobile phones or the personal documents. Rather, he intended to (and did) return to Australia with the phones and personal documents, and he kept them in his immediate possession at all times for his personal use.[12]
[12]Summary of contentions [15].
Contrary to the respondents’ submission, this construction is supported neither by the purposes of the Act nor by the statutory language itself. As to purpose, the respondents’ written submission contended that the purpose of making goods subject to the control of Customs under s 30 was ‘to secure the payment of customs duty’. That contention is directly contradicted by the provisions of the Act, which make unambiguously clear — as appears from Priest JA’s detailed description — that the legislature is equally concerned with preventing the import, and export, of prohibited goods.[13] Import prohibitions on drugs,[14] firearms[15] and child pornography[16] are familiar illustrations of this quite separate legislative concern.
[13]See below [205]–[206].
[14]See, eg, He Kaw Teh v The Queen (1985) 157 CLR 523.
[15]See, eg, Chief Executive Officer of Customs v Granite Arms Pty Ltd (2005) 222 CLR 149.
[16]See, eg, R v Gent (2005) 162 A Crim R 29.
The language of the provisions likewise directly contradicts the respondents’ submission. As senior counsel for the Director correctly pointed out, the provisions under consideration proceed on the express basis that the movement of personal effects out of, and into, Australia constitutes (respectively) an exporting, and an importing, of the relevant goods. Nowhere is this made clearer than in s 30(1)(ad) itself, which provides that personal effects are subject to the control of Customs
from the time of their importation until … they are exported to a place outside Australia.
This point is reinforced by s 71AAAB(2), which opens with the words ‘If Subdivision AA goods are imported into Australia …’. The term ‘Subdivision AA goods’ is relevantly defined to mean ‘goods of a kind referred to in paragraph 68(1)(d)’.[17] For present purposes, as already noted, that means personal effects. Quite explicitly, therefore, the legislature has referred to the ‘importing’ of personal effects.
[17]Section 71AAAA of the Act.
Self-evidently, the movement of personal effects in or out of Australia will rarely, if ever, be relevant for customs duty purposes. Yet, as these provisions demonstrate, the legislature has in the clearest terms provided that such goods are within the scope of customs control during the periods respectively specified.
So far as the outgoing examination is concerned, we have already pointed out that s 30(1)(ad) expressly contemplates the export of personal effects. It follows from what we have said that the phone which Farmer was carrying at that time constituted ‘goods for export’ — that is, for carrying out of Australia — from the time it was ‘brought into’ Melbourne Airport until its ‘exportation’, that is, when he carried it out of Australia. It was ‘subject to the control of the Customs’ throughout that period.
We turn now to deal in more detail with the provisions relating to the incoming examination.
‘Personal effects of a passenger’ (s 30(1)(ad) of the Act)
Section 71(1) of the Act requires ‘a person to whom s 71AAAB applies’ to give information ‘in the circumstances mentioned’ in s 71AAAB. Under s 71(2), Customs must, in specified circumstances, ‘give an authority to deal with goods under [s 71]’; while s 71(3) permits Customs to ‘refuse under [s 71] to authorise the delivery of goods into home consumption’.
Section 71AAAB(1) of the Act requires a person who is the owner[18] (relevantly) of personal effects to provide, under s 71, ‘the information specified in the regulations … at the time; and in the manner and form; specified in the regulations’. In April 2013, the relevant regulations were the Customs Regulations 1926 (the ‘Regulations’). In relation to information required to be provided under s 71AAAB(1) of the Act, Regulation 41 provided that the owner of such goods ‘must provide the information in an approved form or an approved statement’ and ‘must provide the information required by that form or statement’.
[18]‘Owner’ is a defined term in s 4 of the Act.
The ‘approved form’ in which the owner of such goods was required to provide information was the familiar ‘Incoming passenger card’[19] which every passenger arriving in Australia is required to complete. The incoming passenger card which Farmer had to complete posed the following relevant questions:
[19]Form no 15, design date 09/12: see s 4A of the Act and CEO Instrument of Approval No 13 of 2012 dated 16 August 2012.
Are you bringing into Australia:
1.Goods that may be prohibited or subject to restrictions, such as medicines, steroids, illegal pornography, firearms, weapons or illicit drugs?
2.More than 2250mL of alcohol or 50 cigarettes or 50g of tobacco products?
3.Goods obtained overseas or purchased duty and/or tax free in Australia with a combined total price of more than AUD$900, including gifts?
4.Goods/samples for business/commercial use?
5.AUD$10,000 or more in Australian or foreign currency equivalent?
Note: if a customs or police officer asks, you must report travellers cheques, cheques, money orders or other bearer negotiable instruments of any amount.
6.Any food — includes dried, fresh, preserved, cooked, uncooked?
…
Section 71AAAB(2) relevantly provides that, if personal effects are imported into Australia, then Customs[20] must, having regard to ‘information about the goods’ given under s 71AAAB(1) (ie information contained in the incoming passenger card):
(a)authorise the delivery of the goods into home consumption under section 71; or
(b)refuse to authorise the delivery of the goods into home consumption and give reasons for the refusal.
Importantly, s 71AAAB(3) of the Act and Regulation 41A of the Regulations together expressly authorise the oral communication to the passenger of the officer’s decision to authorise, or refuse to authorise, the delivery of the goods into home consumption.
[20]Later amended by s 200 of the Customs and Other Legislation Amendment (Australian Border Force) Act 2015 (Cth) to omit ‘Customs’ and substitute ‘A Collector’. Collector is defined in s 8 of the Act to include ‘any [Customs] officer doing duty in the matter in relation to which the expression is used’.
The effect — for the purposes of the Act — of a passenger completing an incoming passenger card was explained to the Court by senior counsel for the Director in the following terms, which the respondents did not challenge. As happens on a daily basis at Melbourne Airport (and other points of entry), the Customs officer who reviews the incoming passenger card will typically convey to the passenger, orally, that he/she is authorised to ‘deliver’ the personal effects into home consumption. Typically, the passenger will have made no specific reference to any personal effects in answering the questions on the incoming passenger card. But ‘information about the goods’ is nevertheless ‘given’ under s 71AAAB(1) when the passenger answers in the negative one or more of those questions.
In answering ‘No’ to one of the questions set out above, a passenger is providing information that his or her personal effects do not satisfy the enquired-of description. For example, by answering ‘No’ to question 1 on the card, the passenger is providing information that his/her personal effects do not include, or contain, any prohibited or restricted items. Upon the receipt of that information, the officer then makes a decision authorising, or refusing to authorise, the delivery of the goods into home consumption.
It follows from the operation of ss 71 and 71AAAB that, if a Customs officer makes a decision authorising delivery into home consumption, all of the incoming passenger’s personal effects are authorised for delivery into home consumption under s 71 of the Act, not merely goods which were (or ought to have been) specifically declared on the incoming passenger card. Thus, following his return to Australia, Farmer’s phones were, within the meaning of s 30(1)(ad) of the Act, ‘delivered into home consumption in accordance with an authority under section 71’. Until that time, they were ‘goods within the control of the Customs’. With respect, the judge’s conclusion to the contrary cannot be sustained.
The movement of goods that is ‘merely incidental to the movement of a passenger’
We reject Farmer’s submission that the ‘importation’ referred to in s 30(1)(ad), and the ‘exportation’ referred to in s 30(1)(d), exclude movements of goods that are merely incidental to the movement of a passenger. In the vast bulk of cases where a passenger leaves Australia, or returns, accompanied by his or her personal effects, it can be said that the movement of the personal effects is ‘merely incidental to the movement of the passenger’. To accept the exclusion contended for by Farmer in relation to s 30(1)(ad) would be to deprive that subsection of almost any operation so far as personal effects are concerned.
There is no warrant in the section (or in the Act more generally) for so confining the operation of s 30(1)(ad). On the contrary, the express inclusion of personal and household effects in s 30(1), by the insertion of sub-paragraph 30(1)(ad), conveys unambiguously Parliament’s intention that the control and examination provisions apply to goods the movement of which would ordinarily be accepted as being merely incidental to the movement of a passenger.
The deliberate inclusion of personal effects within the scope of ‘goods subject to the control of the Customs’ — and hence as subject to compulsory examination by Custom officers — is unsurprising. As senior counsel for the Director pointed out, goods properly characterised as ‘personal effects’ may well contain prohibited material. Counsel gave the examples of a mobile phone and a computer, either of which might contain child pornography or prohibited material that incites a terrorist act.[21] Another obvious example would be a suitcase, which — as experience shows — may well contain prohibited drugs.[22]
[21]For a recent example, where a mobile phone was examined by Customs officers and found to contain child pornography, see Elliott Merrill (a pseudonym) v The Queen [2017] VSCA 189 [4]–[7].
[22]See, eg, DPP (Cth) v Afford [2017] VSCA 201 [12]–[15].
Although s 30(1)(d), dealing with ‘goods for export’, contains no equivalent reference to personal and household effects, there is nothing in the Act to suggest any legislative intent to treat importation and exportation differently on in the issue of so-called ‘incidental movements’. To the contrary, as pointed out earlier, s 30(1)(ad) expressly contemplates the exporting of personal and household effects.
Conclusion on ground 1
It follows that the judge erred in his construction of ss 30(1)(ad) and (d) of the Act. On the proper construction of those provisions, Farmer’s phones did constitute ‘goods subject to the control of the Customs’ at the relevant times, and s 186(1) of the Act did permit an examination of the phones by Customs officers.
Grounds 2–9: the decision under s 138 of the Evidence Act 2008 to exclude the evidence
The judge’s decision to exclude evidence of the material copied from Farmer’s mobile phones on 14 and 21 April 2013 rested principally on his conclusion that Farmer’s phones were not, on either occasion, ‘goods subject to the control of the Customs’ and — hence — that the Customs officers had no power to examine them or copy their contents. That conclusion having found to be erroneous, the judge’s decision to exclude the evidence must be set aside and the decision required to be made by s 138 of the Evidence Act 2008 must be remade.[23]
[23]Cf House v The King (1936) 55 CLR 499, 505.
The decision falls to be remade in the light of the Director’s concessions as to the failures by the relevant Customs officers to comply with s 186A of the Act and with the instructions given to Customs officers in the document ‘Instructions and Guidelines: Electronic Examination in the Airport Environment (July 2011)’ (the ‘Instructions’). As to the former, s 186A(1) provides that the power to copy a document is exercisable only after the document has been examined (under ss 186 or 186AA) and an officer is satisfied ‘as a result of that examination’ that the document ‘may contain information relevant to’ one or other of the matters set out in s 186A(1)(b). The Director conceded that there was no examination of the phones as required by s 186A(1)(a) of the Act and, as a result, any state of mind formed by any of the Customs officers could not have been ‘as a result of that examination’, as required by s 186A(1)(b).
As to the latter, the Director conceded that the relevant Customs officers had failed to comply with the following parts of the Instructions:
3.6To copy a document under s 186A, an officer must be satisfied that the document, or part of it, may contain information relevant to one of the matters outlined in paragraph 186A(1)(b) …
…
3.7Once the examination officer is satisfied that the document may contain information relevant to one of the above matters, an officer may make a copy of the document. An officer must not simply copy all documents in the traveller’s possession – each document must be considered for relevance.
…
Important points to remember:
•Data is NOT to be copied unless the officer is satisfied that copying is for one of the purposes outlined in paragraph 186A(1)(b) of the Customs Act.
•Where officers are conducting an examination in response to an alert … the existence of the alert with the action ‘assess documents’ is not to be read as an instruction to copy document without first assessing their relevance.
…
•When making a decision to copy a document, officers must record the reason for doing so in the BAGS record, NIS report and their notebook. The reason for copying must include the relevant part of paragraph 186A(1)(b) of the Customs Act …
4.1 XRY is a software package for the examination … of mobile phones and SIM cards. Only Electronic Examination Officers (EEOs) … should undertake these examinations. In undertaking an electronic examination using XRY, the following procedures must be followed.
…
The EEO must:
7. Commence the phone examination using the electronic examination computer … and the XRY examination software.
…
10. Once the XRY examination is complete, the EEO must invite the Baggage Officer to…inspect the results…
11. In order to copy a file under s 186A, both officers must conjointly:
(a) inspect the report output on the screen;
(b) make a decision as to whether, as a result of the examination, both officers are satisfied that the document … may contain information relevant to a matter set out in s 186A(1)(b) …
In determining whether evidence should be excluded under s 138 of the Evidence Act 2008, a court is required to take into account the matters set out in s 138(3), namely:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
As to the probative value of the evidence and its importance, it is common ground that the evidence is ‘substantially probative’ in relation to the matters in issue, and ‘very important’.[24] Again, as the judge concluded, these factors weigh in favour of the evidence being admitted.
[24]Ruling [83], [84].
As to the nature of the offence charged, the judge correctly observed that cases involving fraud on the revenue are recognised as being serious — although, as the judge also observed, other offences on the criminal calendar have higher maximum penalties (the maximum penalty in the present case being 10 years’ imprisonment).[25]
[25]Ibid [89].
We turn to consider the gravity of the Customs officers’ contraventions of the Act and instructions, and the resultant ‘impropriety’. It must be emphasised that, subject to compliance with s 186A of the Act (which would have occurred if the Instructions had been followed), Customs officers were lawfully authorised to examine and copy Farmer’s phones. As the judge put it, if the phones were ‘goods subject to the control of the Customs’, then the impugned evidence ‘could have been lawfully and properly obtained simply by complying with s 186A and the instructions’.[26] The judge then said:
However, the officers’ conduct clearly represented a ‘cutting of corners’, which could not be described as trivial in light of the clear, mandatory requirements set out in the Instructions.[27]
[26]Ibid [108].
[27]Ibid.
The judge referred to the evidence of the Customs officers, saying:
Moreover, the evidence of each of the officers demonstrated that there was a culture within Customs of an unacceptable level of ignorance and indifference as to what was required by the law and the Instructions.
In my opinion, it was no coincidence the conduct of the same kind occurred, both at the outgoing and incoming stages of these matters. That is, it is clear that the breaches that occurred on 14 April were not accidental, isolated or unusual events. None of the officers suggested that they were.[28]
[28]Ibid [109(b)]. The judge made the same findings in respect of what occurred on 21 April upon Farmer’s return to Australia (Ruling [109(e)]).
Even on his view that the examinations were unlawful, however, the judge did not conclude that the conduct of the Customs officers was either deliberate or reckless. On that issue, his Honour said:
The Crown submitted that I should find that the officers had an honest belief that they did have the power to examine and copy documents and mobile phones, consistent with the understanding of Customs as an organisation. Having considered the evidence of the witnesses, particularly in light of the evidence about the culture contained within Customs, I accept that the officers did hold such a belief, albeit that such a belief was ill-informed and confused. However, in relation to the failure to comply with the Instructions, the officers were well aware that they were obliged to comply with the Instructions, but apparently had no real knowledge as to what the Instructions actually required them to do.
It seems to me that, whilst the officers’ mistaken belief as to their power to examine documents could not be properly characterised as deliberate or reckless, their failure to make themselves aware of the relevant Instructions and to comply with them may nevertheless be regarded as egregious, in that it was seriously negligent or the product of inexcusable indifference.[29]
[29]Ruling [96]–[97] (citations omitted).
In Director of Public Prosecutions v Marijancevic,[30] this Court described the spectrum of seriousness along which improper conduct might be measured for the purposes of s 138 of the Evidence Act 2008. The Court said:
At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety. In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal. At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct. Cases such as Ridgeway exemplify this category of impropriety. There are of course other factors which will bear upon how seriously the impropriety should be characterised such as the nature of the illegality and the extent to which it is widespread.[31]
[30](2011) 33 VR 440 (‘Marijancevic’).
[31]Marijancevic (2011) 33 VR 440, 458 [67].
In view of our conclusion that the powers of examination and copying were lawfully available in respect of Farmer’s phones, we consider that such impropriety as occurred falls at ‘the least serious end of the spectrum of improper conduct’. Nothing done by the officers was known by them to be improper or illegal, nor was any action taken for the purpose of obtaining a benefit or advantage that could not have been obtained by proper or lawful conduct.
As the Director correctly submitted, if s 186A and the Instructions had been complied with, then the same result (the copying of the phones) would have ensued. Having regard to the material found on the phones (helpfully described by Priest JA in his reasons for judgment), it is clear that any examination of the phones as required by s 186A would have led very quickly to a conclusion that the phones ‘may contain information relevant to’ an importation of prohibited goods[32] or to the commission of an offence against the Act.[33] The respondents did not suggest otherwise.
[32]Section 186A(1)(b)(i) of the Act.
[33]Section 186A(1)(b)(ii) of the Act.
It is, nevertheless, a matter of serious concern that officers on whom the legislature has conferred such significant coercive powers should have been wholly unaware of the legal pre-conditions for the exercise of those powers. It is frankly astonishing that the officers should have ignored (as it was conceded they had) the admirably clear Instructions given to them, which were obviously designed to ensure that they were aware of, and complied with, those requirements. Senior counsel for the Director advanced no submission to the contrary.
Nor was there any challenge to the judge’s highly adverse finding that there was:
a culture within Customs of an unacceptable level of ignorance and indifference as to what was required by the law and the Instructions.[34]
Plainly, this state of affairs needs to be addressed as a matter of urgency.
[34]Ruling [109(b)].
In his ruling, the judge placed significant weight on the fact that the Customs officers’ improprieties and contraventions were contrary to, and inconsistent with, the right to privacy recognised by the International Covenant on Civil and Political Rights (made relevant by paragraph (f) of s 138(3) of the Evidence Act 2008).[35] Those conclusions must now be substantially tempered in the light of the fact that the Act (subject to compliance with s 186A) provided lawful authority to Customs officers for the examination and copying of Farmer’s phones.
[35]Ruling [98]–[101].
As to the likelihood of other proceedings being taken, the judge said that he had no reason to conclude that any such proceedings were likely.[36] In this Court, no party sought to cavil with that part of the judge’s ruling.
[36]Ibid [103].
Finally, as to the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law, the Director’s submission that the evidence could have been obtained (and would likely have been obtained) if the Customs officers had complied with s 186A and the Instructions (as it was in their power to do so) is plainly correct. This was not a case where those involved in the contraventions required external approval for their actions. If the Customs officers had addressed themselves to the requirements of s 186A and the Instructions, they would have examined the phones and would inevitably have formed the requisite states of mind that would have permitted copying of the phones (the phones being documents within the meaning of s 4 of the Act).
Conclusion on grounds 2–9
The Director has made out ground 2 of her proposed grounds of appeal, namely, that the judge erred in taking into account his view that there had been no lawful authority to examine Farmer’s phones. Plainly enough, his Honour’s decision to exclude the evidence was powerfully influenced by his conclusion that the Customs officers had no power to examine the phones and that what occurred was therefore wholly unlawful.
In the circumstances, it is not necessary to analyse each of the specific complaints of error set out in the Director’s proposed grounds 3–8. The decision whether to exclude the evidence from Farmer’s phones must now be remade. Having reviewed the evidence relevant to the issue, and noting that there are no outstanding findings of fact to be made,[37] there is no reason why that decision should not be made by this Court.[38]
[37]Cf R v Em [2003] NSWCCA 374 [139].
[38]Cf R v Camilleri (2007) 68 NSWLR 720, 727 [34], [36]; R v Gallagher [2015] NSWCCA 228 [55].
As already noted, the contraventions and associated impropriety conceded by the Director in this case were systematic, significant and concerning.[39] Nevertheless, the evidence sought to be excluded is highly probative and would have been obtained had Customs officers complied with the requirements of s 186A and the Instructions. In all the circumstances, the desirability of admitting the impugned evidence clearly outweighs the undesirability of the admission of evidence obtained without regard to the requirements of s 186A of the Act and the Instructions.[40] Of importance in reaching that conclusion is the probative value of the evidence; the serious nature of the alleged offending; the fact that the evidence was obtained without any knowledge or realisation that the conduct in obtaining it was improper or contrary to the Act; and the fact that the evidence would almost certainly have been obtained in any event had the Act and the instructions been complied with.
[39]For completeness, it should be noted that the failure to comply with those parts of the Instructions dealing with notes and record keeping were held by the judge not to amount to a relevant impropriety (Ruling [73]–[74]), and no party disputed the correctness of that part of the judge’s ruling.
[40]Evidence Act 2008 s 138(1).
Conclusion
The Director’s application for leave to appeal must be granted and the appeal allowed. The judge’s decision to exclude the evidence found on Farmer’s phones on 14 and 21 April 2013 must be set aside and, in lieu thereof, there should be an order refusing the application for exclusion.
B THE CASE STATED
The questions reserved concern the meaning to be given to the word ‘import’ in s 233BABAD of the Act. That section relevantly reads as follows:
Section 233BABAD Smuggling etc tobacco products
(1) A person commits an offence if:
(a) the person imports goods; and
(b) the goods are tobacco products; and
(c)the person imports the goods with the intention of defrauding the revenue.
(2) A person commits an offence if:
(a)the person conveys, or has in the person’s possession, goods; and
(b) the goods are tobacco products; and
(c)the person knows that the goods were imported with intent to defraud the revenue.
It is submitted on behalf of Mendez that the word ‘import’ in subsection (1)(a) means:
to cause the substance to arrive into Australia from abroad to a point where it will remain in the country. The import concludes (at its latest) when the carriage of the goods is ended or its continuity is in some way broken. ‘Import’ is limited to the arrival of goods and does not include their subsequent collection or distribution.
The submission for the Director, on the other hand, is that the phrase ‘imports goods’
refers to participation in a process of importation which extends beyond the landing of goods in Australia. The term captures conduct connected with the bringing in of goods, and with the recovery of those goods after landing.
For reasons which follow, the Director’s submission must be upheld. There is a consistent line of authority supporting the construction contended for. As will appear, the decisions in question are all decisions of the New South Wales Court of Criminal Appeal (the ‘CCA’), over a period of almost two decades, concerning the meaning to be given to the word ‘importation’ in the former s 233B(1)(d) of the Act.[41] The relevant parts of s 233B(1) were in these terms:
[41]This subsection was repealed by the Law and Justice legislation (Application of Criminal Code) Act 2001 (Cth).
(1) A person who —
…
(b)imports … into Australia any prohibited imports to which this section applies …; or
…
(d)aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies …;
…
shall be guilty of an offence.[42]
[42]Emphasis added.
It was submitted for Mendez that the verb ‘import’ was narrower in scope than the noun ‘importation’. The asserted distinction is, in our view, untenable. We respectfully agree with the view expressed by McClellan CJ at CL (with whom Davies J agreed) in R v Nolan,[43] that ‘the distinction between importing (the verb) and the importation (the noun) is … entirely illusory’.[44] His Honour said:
It is plain to my mind that the importation (the noun) referred to in s 233B(1)(d) was the broad activity which involved the act of importing contemplated in s 233B(1)(b).[45]
[43](2012) 83 NSWLR 534 (‘Nolan’).
[44]Ibid 540 [27].
[45]Ibid [26].
It is clear, both as a matter of ordinary language and from the usage of the terms throughout the Act, that when a person ‘imports’ goods he/she is engaged in the activity of ‘importation’, and vice versa. As a matter of ordinary language, where a word is used to convey a particular meaning, it is to be assumed — absent any contrary indication — that other parts of speech derived from that word will have a corresponding meaning when used in the same context.
Interpretation statutes make express provision to that effect in respect of defined terms,[46] but the same assumption is properly to be applied to undefined terms.[47] This may be seen as a variant of the presumption of consistent usage, that is, the ‘sound rule of construction’ that the same words appearing in different parts of a statute should be given the same meaning, unless there is reason to do otherwise.[48] We respectfully endorse the view expressed by the learned authors of Statutory Interpretation in Australia that this approach to interpretation is conducive to ‘greater certainty in the prediction of the meaning of an Act’.[49]
[46]See, eg, Acts Interpretation Act 1901 (Cth) s 18A.
[47]See, eg, Genders v Ajax Insurance Co Ltd (1950) 81 CLR 470, 483.
[48]Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, 618.
[49]D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) 6.66.
The Act itself provides numerous illustrations of the point. Although now repealed, the former s 233B(1) is a perfect example, as McClellan CJ at CL pointed out in Nolan. The verb ‘imports’ in sub-paragraph (1)(b) referred to the same ‘broad activity’ as the noun ‘importation’ in sub-paragraph (1)(d).[50]
[50]Nolan (2012) 83 NSWLR 534, 540 [26].
As to current provisions, we referred in the first part of these reasons to s 30(1) of the Act. As has been noted, s 30(1)(ad) provides that personal effects will be subject to the control of the Customs until ‘they are exported to a place outside Australia’. In the very same section, 30(1)(d) provides that goods ‘for export’ will be subject to the control of the Customs until ‘their exportation to a place outside Australia’. The participle ‘exported’ in sub-paragraph (ad) refers to the same ‘broad activity’ as the noun ‘exportation’ in sub-paragraph (d).
In Nolan, the CCA was concerned with s 233BAA(4) of the Act, which provides as follows:
(4) A person is guilty of an offence against this subsection if:
(a) the person intentionally imported goods; and
(b)the goods were tier 1 goods and the person was reckless as to that fact; and
(c)their importation:
(i)was prohibited under this Act absolutely; or
(ii)was prohibited under this Act unless the approval of a particular person had been obtained and at the time of the importation, that approval had not been obtained.[51]
[51]Ibid 537–8 [13] (emphasis added).
McClellan CJ at CL said of this provision:
To my mind the meaning of the word ‘imported’ in the section is plain. The section does not contemplate that there can be separate behaviour being an ‘importation’ which is an offence beyond the prohibited ‘importing’ of goods. The noun ‘importation’ in subs (c) refers to the event to which the verb ‘imported’ refers.
…
[T]he offence provision itself refers to a person who ‘intentionally imported’ goods as well as to the ‘importation’ of the goods in subs (c). The use of the verb ‘import’ and the noun ‘importation’ within the same offence provision suggests that there is no material difference between the word ‘imported’ and the broader process of importation discussed in Calderwood.[52]
[52]Ibid 541 [28], [32].
If further confirmation were required, the Director draws attention to the definition of ‘smuggling’ in s 4 of the Act. That definition provides as follows:
‘Smuggling’ means any importation, introduction or exportation or attempted importation, introduction or exportation of goods with intent to defraud the revenue.
It is plain enough from the heading s 233BABAD (above) that it is the offence of smuggling which is committed when a person ‘imports goods’ in the circumstances specified in sub-s (1).[53] When the person ‘imports’ the relevant goods, what is occurring is an ‘importation’.
[53]As to the interpretive relevance of headings, see Berenguel v Minister for Immigration and Citizenship (2010) 84 ALJR 251, 253–4 [15].
As already mentioned, the scope of the relevant activity — whether referred to as ‘importing’ or as ‘importation’ — has been clearly established by a series of decisions of the CCA concerning s 233B(1)(d). The starting-point is R v Lam,[54] where the Court upheld a direction the relevant part of which was as follows:
[T]he importation includes all that is incidental or proximate to the act of importation, but it does not include the use, transportation or disposal of the goods after everything proximate and incidental to the importation has been completed.[55]
[54](1990) 46 A Crim R 402 (‘Lam’).
[55]Ibid 404.
Gleeson CJ (with whom Kirby P and Newman J agreed) said that ‘the term “importation” is one that must involve at least some measure of flexibility’.[56] This was said to be demonstrated by the following statement by Barwick CJ in Forbes v Traders Finance Limited:
‘[I]mportation’ extends on both sides of the actual act of importing into the country. The importation does not cease at the moment of an import. But the relevant [activity] must be proximate to the act of importing. Whether it is so or not is a question of degree for decision in a particular case.[57]
[56]Ibid.
[57]Forbes, Collector of Customs (NSW) v Traders Finance Corporation Ltd (1970) 126 CLR 429, 432.
The next is R v Courtney-Smith [No 2],[58] where the CCA followed Lam in rejecting a contention that the ‘importation’ terminated at the loading of the goods. The Court (Gleeson CJ, Kirby P and Lusher AJ) said:
At least at the point where the imported product was still in a container held in a hired factory in suburban Sydney, a distance from the airport which is minuscule in continental Australia and two weeks after landing, before distribution to the markets for which it was clearly intended, the process of ‘importation’ contemplated by the Customs Act has not relevantly ceased for this offence.[59]
[58](1990) 48 A Crim R 49.
[59]Ibid 64.
The question arose again in R v Leff,[60] which concerned the transportation to Australia of cocaine by couriers who had been instructed to deliver the cocaine to the principal at the Australian end. Because one of the couriers was intercepted by the authorities, the Court held, ‘the venture of importation was incomplete. It had been interrupted by the authorities.’[61] Gleeson CJ said:
The concepts of importation, and of being concerned in an importation, are both sufficiently flexible to cover a case such as the present. … Importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import. Furthermore, concern in an importation can commence at a time when it has apparently broken down, and where efforts are being made to bring it to fruition.[62]
[60](1996) 132 FLR 102.
[61]Ibid 103.
[62]Ibid 104.
In 2005, in R v Sukkar,[63] the CCA (Wood CJ at CL, with whom Hidden J and Smart AJ agreed) approved the following directions, describing them as ‘unexceptional’:
The importation is the whole process of making available in Australia goods from overseas. It includes all that is incidental or proximate to the act of importation. That is, the importation does not finish the moment the goods are landed or even the moment they are cleared through customs, but extends to all matters and events which are directly related or proximate or incidental to the importation. That is, to the whole process of making the goods available in Australia. Importation is the continuing process or venture and extends to both sides of the actual act of importing to all matters which are directly related or proximate or incidental to the act of importation.
The venture or process of the importation can begin before the narcotic goods are placed aboard the craft or vessel by which they are brought into Australia and can continue after the act of importation. For example, prior to the actual act of importing narcotic goods into Australia from overseas, the process or venture of the importation can include such things as the payment for the narcotic goods, their packaging and concealment and their delivery to a courier or a freight forwarding agent or craft or vessel and their transport into Australia. Similarly, after the actual act of importing narcotic goods into Australia, the process or venture of the importation can include such things as picking up the narcotic goods following their arrival in Australia, delivering items to another person or elsewhere and packing the narcotic goods, and whatever is necessary to enable the recovery of the narcotic goods after their actual importation into Australia in order to make them available in Australia, for example for distribution to the markets for which they are intended.[64]
[63][2005] NSWCCA 54.
[64]Ibid [78]–[80].
Wood CJ at CL added:
[A]n importation and concern in it do not begin or end at the moment the narcotic goods arrive at the port of disembarkation, or cross the customs barrier. The offence charged embraces activities both preceding and following the arrival of the goods, which are directly related, or proximate or incidental to, bringing the goods into the country.[65]
And further:
[T]he extended concept involved in the process of importation … includes recovery of the goods after landing and anything which is done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is the suppliers, shippers, customs agents, freight forwarders, and so on.[66]
[65]Ibid [109].
[66]Ibid [121].
Finally, in Calderwood v The Queen,[67] the CCA approved a direction which was relevantly in these terms:
Importing is a process of importing, it does not just stop the minute something lands in Australia because the person who is doing the importing is seeking to get his hands on it after the goods have landed in Australia, he would be seeking to go to the customs agent and pick it up.[68]
McClellan CJ at CL (with whom the other members of the Court agreed) said:
[A]n importation neither begins nor ends at the point of which the goods arrive in Australia. Both events before the goods arrive and activities afterwards, which are incidental to the bringing of the goods into Australia, are admissible to prove the importation.[69]
[67](2007) 172 A Crim R 208 (‘Calderwood’).
[68]Ibid 211 [10].
[69]Ibid 212 [12] (citations omitted).
Relying on what was said by Spigelman CJ in R v Campbell,[70] it was submitted for Mendez that in each of the cases referred to the word ‘importation’ had been given an ‘expansive interpretation’ because the Court was concerned with the offence of being ‘knowingly concerned’ in an importation. On that basis, it was said, those decisions could be distinguished.
[70](2008) 73 NSWLR 272, 290 [101]–[102] (‘Campbell’).
With respect, it is quite clear from passages extracted above that the CCA was concerned on each occasion to define the scope of the concept of ‘importation’ itself. This is hardly surprising given that, unless the scope of the principal offence of importation was first determined, it would not be possible to determine whether the alleged accessory had been ‘knowingly concerned’ in the offence. We respectfully agree with the view of the majority in Nolan:
In the scheme of the legislation as it previously was it would make no sense to provide an ‘aiding and abetting’ offence which covered a broader range of conduct than the primary offence.[71]
[71](2012) 83 NSWR 534, 540 [27].
The alternative submission for Mendez was that the CCA decisions — specifically, Calderwood and Nolan — were ‘plainly wrong’ and should not be followed. That submission must also be rejected. In our respectful view, the analysis in the successive decisions is cogent and compelling.
Nor, with respect to Priest JA, does any occasion arise to consider the correctness of the reasoning in Campbell. As his Honour points out, that case concerned a provision of the Criminal Code (Cth) (the ‘Code’), rather than of the Act. Moreover, the Code was subsequently amended, for the stated purpose of reversing the effect of the decision in Campbell.[72] As counsel for the Director pointed out, the provision under consideration here — s 233BABAD — was introduced after that amendment was made, and after the CCA in Nolan had rejected the distinction between ‘import’ and ‘importation’. Nothing said in Campbell can assist with the present task of construction.
[72]See Replacement Explanatory Memorandum to the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) (2009) (Cth) pp 192–3.
Conclusion
It follows from this analysis that evidence of Mendez’s activities in connection with the collection and delivery of the two shipping containers is clearly capable of supporting the conclusion that he was party to an agreement to ‘import’ the goods in those containers, within the meaning of s 233BABAD(1). Question 2 should be answered in the affirmative.
As to question 1, the jury should be directed in accordance with the line of authority to which we have referred. Beyond saying that the directions approved in those cases will provide some assistance, it is neither necessary nor appropriate for the Court to formulate the terms of the direction.[73]
PRIEST JA:
[73]See DPP (Cth) v Karabegovic (2013) 41 VR 319, 321 [6].
Introduction
Jonathon Farmer (‘Farmer’), Ryan Larson (‘Larson’), Saul Reese (‘Reese’) and Garry Mendez (‘Mendez’)[74] each face trial on an indictment filed in the County Court charging them with conspiring between 14 April 2013 and 16 June 2013 to import tobacco products with intent to defraud the revenue.[75]
[74]Larson and Farmer are father and son. Reese is Larson’s nephew. Mendez performed occasional work for Larson.
[75]Customs Act 1901 (Cth), s 233BABAD(1). The maximum penalty is 10 years’ imprisonment.
The charge relates to the contents of two shipping containers consigned from Dubai, the first of which, containing a total of 7.84 million cigarettes, arrived in Melbourne on 29 May 2013; and the second of which, containing 9.84 million cigarettes, arrived in Melbourne on 13 June 2013.
There are two proceedings before this Court. First, the Commonwealth Director of Public Prosecutions (‘the Director’) seeks leave to appeal against an interlocutory decision of the trial judge excluding part of the prosecution’s evidence pursuant to s 138 of the Evidence Act 2008 (Vic). Secondly, the trial judge has reserved a question of law for this Court’s determination pursuant to s 302 of the Criminal Procedure Act 2009 (Vic) (‘CPA’); and, as is required by s 305, has stated a case (‘the case stated’) ‘setting out the question and the circumstances in which the question has arisen‘. In essence, the case stated seeks clarification of the meaning of
import for the purposes of a charge under s 233BABAD(1) of the Customs Act 1901 (Cth). As will become clear, the case stated is concerned principally with the activities of Mendez; and in particular, whether Mendez’s conduct in allegedly facilitating the collection and delivery of the containers is capable of demonstrating his agreement to import those containers.
It will be expedient to consider the interlocutory appeal and case stated separately, since they raise discrete issues. Before doing so, however, and so that the issues raised might be put into proper context, it is convenient to provide a general overview of the prosecution case.
Overview of the prosecution case
As I have indicated, the charge against each of the accused — which arose from the activities of the ‘Trident Task Force‘ — relates to two shipping containers.
The Crown Opening filed for the purposes of the trial, recites that between 1 May 2013 and 24 October 2013, the Trident Task Force — consisting of members of Victoria Police, the Australian Crime Commission (‘ACC’), the Australian Federal Police (‘AFP’), the Australian Customs and Border Protection Services (‘Customs’), the Australian Transaction Reports and Analysis Centre (‘AUSTRAC’) and the Australian Taxation Office (‘ATO’) — conducted an investigation codenamed ‘Operation Peacham’, so as to investigate the illegal importation of large quantities of tobacco through the Port of Melbourne.
The first container relevant to the charge, ‘Container No 1’ — bearing the identification ‘MSKU1038747’, the number on its seal being ML-AE1661518 — arrived at East Swanson Dock, Melbourne, aboard the merchant vessel ‘Grasmere Maersk’, at 10.18 pm on 29 May 2013. According to the relevant documentation, the consignor was ‘Leb & Emr G. Trading Company’, based in Dubai, United Arab Emirates; the consignee was Arabella Foods Pty Ltd, 155 Allingham St, Condell Park, NSW, 2200; and the delivery address was 34 Hope St, Brunswick, 3056, Melbourne, Victoria. The goods were declared for customs purposes as being 416 cartons of ‘Disposable slippers and bed tissue’.
On 30 May 2013 at 3.56 pm, Customs officers unpacked and examined the contents of Container No 1. They observed that the front row closest to the container door consisted of a cover load of 16 cartons containing disposable poly cotton slippers and rolls of tissue paper, but that the remaining 392 cartons each contained two shippers with 10,000 cigarettes in each (that is, 20,000 cigarettes per carton).
After its contents were examined, Container No 1 was repacked by Customs officers and was resealed at 10.19 pm.
Container No 1 contained a total of 7,840,000 cigarettes. The duty payable on those cigarettes was $2,779,044.80.
On 13 June 2013 at 7.25 pm, another container, ‘Container No 2’, bearing identification ‘TCLU5713949’, arrived at East Swanson Dock, Melbourne, on board merchant vessel ‘Maersk Dryden’. Once more the consignor was Leb & Emr G. Trading, Dubai; the consignee was Arabella Foods Pty Ltd, Allingham St, Condell Park, NSW, 2200; and the delivery address was 34 Hope St, Brunswick, Melbourne, Victoria, 3056. The declared contents of the container was ‘984 Ctns disposable slippers & bed tissue’.
The following day, 14 June 2013, at around 10.30 am, Customs officers conducted an examination of Container No 2. It contained 984 boxes each with 50 cartons of ‘Manchester’ brand cigarettes. After the cigarettes were seized, the container was repacked and resealed at around 5.42 pm.
Container No 2 contained a total of 9,840,000 cigarettes. The duty payable on those cigarettes was $3,487,984.80.
The prosecution case is that the four accused had the following roles:
·Larson was the principal organiser and financier of both importations. He was in regular communication with Reese about the customs clearance and delivery of the containers, and about collection and payment by the Victorian buyers of the cigarettes.
·Farmer is Larson’s son. He travelled to Dubai between 14 and 21 April 2013, to organise the importation of cigarettes into Australia through a contact named Chady Ghaoui, and while he was there, he oversaw the packing of the first container load of cigarettes, Container No 1.
·Reese is Larson’s nephew. He was in regular communication with Farmer about the arrival, delivery and collection of Container No 1. Reese was responsible for liaising with the customs broker, Stokes and Bell Pty Ltd, to organise the customs clearance of both containers. He also liaised with the Melbourne buyers (or persons who are believed to represent the Melbourne buyers) to organise the retrieval of the cigarettes and the collection of payment from them.
·Mendez did occasional work for Larson (who has a number of business interests). He was in regular contact with Larson and staff at Patlin Transport to arrange collection and delivery of Container No 1, and liaised with Dean Chrimes, who worked at the Port, concerning the status of the containers.
According to the prosecution case, several others had a role in the importation of the cigarettes. Among them:
·Chady Ghaoui (‘Ghaoui’) organised the shipment of the cigarettes from Dubai;
·Daoud Rahim El Choueiri (‘El Choueiri’) was a buyer, or representative of the buyers, of the cigarettes;
·Jean Alajaji (‘Alajaji’) was a buyer, or representative of the buyers, of the cigarettes; and
·Dean Chrimes (‘Chrimes’) was employed as a stevedore and clerk at Toll ANL Bass Strait Shipping, Port of Melbourne. In his role, and through his contacts, Chrimes was able to discover when shipping containers had landed, and whether they had been examined by Customs. Chrimes provided information on the containers to Mendez who, in turn, updated Larson.
The prosecution alleges that the primary organiser of the shipments of the two containers was Larson. By November 2012, Larson had begun planning the importation of cigarettes into Australia. He was communicating with Ghaoui, who later made arrangements for the shipments from Dubai. Between 22 April and 6 May 2013, Larson transferred money to Ghaoui, as payment for the importations and his role in arranging them.
Between 14 and 21 April 2013, Farmer travelled to Dubai to meet with Ghaoui. While there, he supplied Ghaoui with details for the shipping documents, oversaw the packing of Container No 1, and arranged for Ghaoui to be paid $50,000. Farmer’s trip, and his activities while in Dubai, were, so the prosecution alleges, undertaken pursuant to an agreement with his father, Larson.
Later, between 20 May and 30 May 2013, Reese — using the name of ‘Marwa Taher’ — communicated with Customs broker, John Crossman, to provide the information necessary to obtain customs clearances for both containers.
A number of telephone conversations involving Larson and Reese were intercepted between 23 May and 31 May 2013. They discussed the paperwork necessary to obtain customs clearance, and what the necessary paperwork should say about the contents of Container No 1. Larson and Reese also discussed the delivery of the containers, and the collection of payment from the buyers.
Between 28 May and 31 May 2013, Reese also had a number of intercepted telephone conversations with the buyers El Choueiri and Alajaji. They assisted him with the customs clearance paperwork, and discussed arrangements for the delivery of the contents of Container No 1.
I will discuss Mendez’s activities in more detail when I come to consider the case stated. At this stage it is sufficient to observe that on 30 May and 31 May 2013, Mendez spoke to a number of individuals for the apparent purpose of facilitating delivery of Container No 1. In particular, he gave instructions to a transport company, Patlin Transport, to collect the container from East Swanson Dock and deliver it to an address in Kalkallo.
As it transpired, shortly after 3.10 pm on 31 May 2013, Container No 1 was collected from East Swanson Dock by a truck registered to B&K Express Freight Australia Pty Ltd — it appears that Patlin Transport had arranged for B&K Express Freight to collect the container on their behalf — and at 3.48 pm, Container No 1 was observed in the storage yard of B&K Express Freight, at 35-43 Cyanamid Street, Laverton North.
Ultimately, during the evening of 31 May 2013, Patlin Transport conveyed a container to Kalkallo. At the apparent request of the buyers, the container was later that night transported to ‘Truck City’ in Campbellfield, where Reese, together with El Choueiri and Alajaji, opened it. To their dismay, they discovered that the wrong container had been collected. The container which was transported to Truck City bore identification REGU421073942G. Container No 1, bearing number MSKU1038747, remained in the storage yard of B&K Express Freight, Laverton North.
The next day, 1 June 2013, there were a number of telephone calls between Larson, Reese and Farmer about the colour of Container No 1. Farmer confirmed he was there when it was loaded, that he had photos and that the container was a ‘metallic brown colour’ and the seal was ‘light blue’. At 8.24 am, Mendez spoke with ‘Pat’ from Patlin Transport, who confirmed that B&K Express Freight had given them the wrong container and that ‘Customs is in his yard now seizing that container’. It seems that at that time, Customs and the AFP were at the yard of B&K Express Freight executing a warrant for the seizure of Container No 1.
When I come to consider the interlocutory appeal and the case stated, I will refer to other evidence relating to the particular issues raised by those individual proceedings.
With that background, it is convenient to turn first to the interlocutory appeal.
THE INTERLOCUTORY APPEAL
Summary of the issues on the interlocutory appeal
As I have mentioned, the prosecution alleges that Farmer travelled to Dubai between 14 and 21 April 2013, so as to organise the importation of cigarettes into Australia.
The prosecution sought to adduce evidence obtained during examinations of Farmer’s baggage by officers of Customs (‘the officers’) at Melbourne Airport on 14 April 2013 (‘the outgoing examination’)[76] and 21 April 2013 (‘the incoming examination’).[77] Broadly, the evidence consisted of:
[76]The outgoing examination was conducted by officers Cain Malthouse and Brendan Ollier, both of whom gave evidence on the voir dire. Exhibit 10 is a list of telephone contacts found upon that examination.
[77]Officers Michael Pecora and Ashley Rodrigues were involved in the incoming examination, and gave evidence of it on the voir dire. Exhibits 21 (image index), Exhibit 22 (telephone phone contacts; messages between Farmer and other offenders, as well as Ghaoui; images of a shipping container), and Exhibit 23 (messages; telephone location history), were derived from that examination.
·copies of certain documents in the possession of Farmer (‘the copied documents’);
·copies of downloaded contents of the mobile telephones that Farmer was carrying (‘the mobile phone material’); and
·statements made by Farmer during the baggage examinations in response to questions directed to him by the officers.
The documents and telephone evidence contain references to persons, transactions and other material which, the prosecution contends, is incriminating.
By a ruling dated 29 May 2017, pursuant to s 138 of the Evidence Act 2008, the trial judge excluded the evidence of the content of the mobile telephones located in the possession of Farmer on 14 and 21 April 2013 (’the interlocutory decision’ or ‘the ruling’).
Pursuant to certification of the trial judge granted under s 295(3)(a) of the CPA, the Director seeks leave to appeal against the interlocutory decision on nine grounds:
1. The learned trial judge misconstrued relevant provisions of the Customs Act 1901 (Cth) in holding that hardcopy documents and mobile phones in the possession of [Jonathon Farmer] during baggage examinations on 14 and 21 April 2013 were not ‘goods subject to the control of the Customs’ for the purposes of section 186 of that Act.
2. In exercising his discretion to exclude evidence obtained from mobile phones in the possession of [Jonathon Farmer] on 14 and 21 April 2013, the learned trial judge erred in taking into account his view that there had been no lawful authority to examine the phones.
3. In exercising his discretion to exclude evidence obtained from mobile phones in the possession of [Jonathon Farmer] on 14 and 21 April 2013, the learned trial judge erred in failing to take into account:
(a)the fact that an examination of the phones by Customs officers was authorised by law, and to that extent would have been a lawful invasion of privacy;
(b)the limited nature of the examination of the phones which was required by s 186A of the Customs Act 1901 (Cth) in the circumstances of this case;
(c)the ease with which the requirement to examine the phones could have been complied with; and
(d)the fact that the failure to examine the phones prior to copying their contents did not result in a benefit or advantage that could not be gained by strict compliance with the statute.
4. In exercising his discretion to exclude the evidence obtained from mobile phones in the possession of [Jonathon Farmer] on 14 and 21 April 2013, the learned trial judge erred in:
(a)failing to take into account the fact that information concerning [Jonathon Farmer’s] contacts and associates was information which may have been relevant for the purposes of section 186A of the Customs Act 1901 (Cth);
(b)failing to take into account the fact that officers of Customs who responded to alerts on 14 and 21 April 2013 were specifically informed by those alerts that information about [Jonathon Farmer’s] contacts and associates would be of significant importance;
(c)taking into account that information from Skype and Facebook accounts was copied; and
(d)taking into account that irrelevant personal information was also copied.
5. The learned trial judge erred in holding that the copying of [Jonathon Farmer’s] mobile phones:
(a)was illegal and[78][78]Upon the hearing of the application for leave to appeal, counsel for the Director effectively abandoned ground 5(a).
(b)constituted serious impropriety.
6. The learned trial judge erred in characterising the failure of officers of Customs to comply with internal instructions and guidelines as constituting:
(a)a contravention of minimum standards; and
(b)serious impropriety.
7. The learned trial judge erred in mischaracterising the gravity of the charged offence, in particular by contrasting it with:
(a)crimes involving ‘immediate or palpable harm’ to identifiable victims; and
(b)different types of criminal offences with higher maximum penalties.
8. In exercising his discretion to exclude evidence obtained from mobile phones in the possession of [Jonathon Farmer] on 14 and 21 April 2013, the learned trial judge erred in taking into account:
(a)his own personal circumstances; and
(b)the limited training he considered was given to Customs officers.
9. It was not reasonably open to the learned trial judge to exclude the evidence obtained from mobile phones in the possession of [Jonathon Farmer] on 14 and 21 April 2013, particularly given:
(a)his Honour’s finding that there was no reckless or deliberate impropriety or contravention by officers of Customs; and
(b)the probative value and importance of the evidence, and the seriousness of the charged offence.
Orally, senior counsel sought to characterise the grounds of appeal. She submitted that grounds 1 and 2 were ‘on principle’; that each limb of ground 3, and the first two limbs of ground 4, related to the judge’s ‘failure to take specified material considerations into account’; that ground 7 concerned error ‘in principle in characterising the seriousness of the offence’; and that ground 8 related to the judge permitting ‘extraneous or irrelevant matters’ to ‘guide or affect’ his exercise of discretion.[79]
[79]Probably due to intervention from the bench, no shorthand label was assigned to ground 9.
Senior counsel stated that ground 2 ‘was an allied ground’ to ground 1, which ‘arises only if the Director succeeds’ in relation to ground 1, and said: ‘So assuming the Director succeeds in establishing that the trial judge misconstrued one or more of those provisions of the Customs Act and therefore erred in concluding that they were not subject to Customs control so that there was no power to examine or copy them, [ground] 2 asserts that the errors of statutory construction so infected the exercise of the discretion that the discretion miscarries at that point’.
I will later consider in more detail the submissions made by counsel. But as will become clear, the principal issue arising on the first ground is whether Farmer’s mobile telephones were ‘goods subject to the control of the Customs’ within the meaning of the Customs Act 1901 (Cth) when he left Australia on 14 April 2013, and when he returned a week later. That in turn will require consideration of the meaning of ‘export’ and ‘import’ as those terms (and their derivatives ‘imported’ and ‘importation’, and ‘exported’ and ‘exportation’) are used in the Act.
The evidence claimed to be illegally or improperly obtained
It is necessary to set out in more detail the evidence which was the subject of the trial judge’s ruling.
On 14 April 2013, at approximately 9.00 pm, Farmer went to Melbourne Airport for the purpose of travelling to Dubai. He was subjected to questioning and baggage examination by officers of Customs. Items located in Farmer’s possession included:
(a) Passport number E3047288 in the name of [Jonathon Farmer], born 21 September 1983;
(b) an outgoing passenger card indicating a ten day holiday to the United Arab Emirates (‘UAE’);
(c) a receipt for foreign currency exchange addressed to [Jonathon Farmer] of [a given address];
(d) an Etihad Airways boarding pass for flight EY461, destined for Abu Dhabi UAE;
(e) an Apple iPhone 5 (+61 411 166 895); and
(f) a handwritten note containing the following notations:
· Cameroon, Arabella Foods P/L;
· ABN: 67098 582 828;
· Add: 115 allingham at Condell Park NSW 2200;
· Melb, Patrick terminal Vl;
• Chady $50,000;
• Email release (Telex);
• Destination: 155 allin.
Farmer told Customs officers he was travelling to meet up with a Chechnyan female friend he met on a previous trip to Dubai in December. He said he would spend the majority of his time with her, and that while in Dubai, he planned to shop and take his friend to restaurants. Farmer said that he would stay ten days before returning to Melbourne. He said that he travelled regularly for pleasure, and that he worked as a manager at his family’s café that he bought with his father five to six years ago.
In ordinary parlance, to ‘import’ is to bring in something from a foreign country or some other outside source. Section 300.2 of the Code provides that ‘import’ includes ‘bring into Australia’. The word has a protean quality and is capable of being given either a broad or narrow interpretation. The Chief Justice has reviewed the authorities which bear upon the matter, and I cannot usefully add to his Honour’s analysis of the case law. I agree that the decisions which carry the greatest weight are those of the High Court in Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131 and The Queen v Bull (1974) 131 CLR 203. I also agree, however, that neither of these cases is determinative of this appeal.
And:[163]
In searching for the meaning to be imputed to the term ‘imports’ in s 307.11 of the Code, it may be useful to have regard to the provisions which governed the importation of narcotic drugs before that section came into effect. In doing so, however, it must be remembered that what is being interpreted is a code and not an Act of Parliament. This means that special rules of interpretation are applicable. The language of the Code should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law: see Bank of England v Vagliano Brothers [1891] AC 107; Brennan v The King (1936) 55 CLR 253 at 263, per Dixon J and Evatt J; and Vallance v The Queen (1961) 108 CLR 56 at 74–76, per Windeyer J.
As a matter of ordinary usage of language, the term ‘imports’ seems to have implicit within it the idea of both a beginning and an end. The same is true of the term ‘exports’, which appears immediately adjacent to ‘imports’ in s 307.11(1)(a). The High Court in The Queen v Bull determined the point at which the act of importing commences. A person does not import goods until they are either landed in this country or brought within a port for the purpose of being so landed. The case was silent, however, as to when the act of importing ends.
In Wilson v Chambers, Isaacs J addressed that very issue. His Honour postulated that imported goods meant goods that were in fact brought from abroad into Australian territory and, in respect of which, the carriage was ended or its continuity had in some way in fact been broken: see also R v Hancox [1989] 3 NZLR 60 at 62.
In the context of this appeal, if the Crown’s contention that an importation continues until the goods reach their ‘final destination’ (an expression of some indeterminacy) were to be accepted, a person could be guilty of importing prohibited drugs by doing an act far removed from the actual landing of the drugs in this country. That act could take place weeks, months or even years after the drugs had been brought into Australia. Such a wide notion of the word would not accord with ordinary usage of language and would be foreign to most people’s understanding of that term. In addition, an interpretation of such breadth would not sit well with the approach normally taken to the construction of penal statutes: Beckwith v The Queen (1976) 135 CLR 569 at 576.
[163]Ibid 295–6 [141]–[144].
The reasoning in Campbell should, in my view, be accepted, even though doubts were raised in Nolan as to aspects of it.
Nolan was an appeal against an acquittal by the Commonwealth Director of Public Prosecutions, pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW). The respondent was charged under s 233BAA of the Customs Act 1901 (Cth) with aiding and abetting the importation of pseudoephedrine. It seems that three marble stools containing pseudoephedrine were shipped from Thailand. The respondent assisted the importer of the pseudoephedrine, ‘Simpson’, at a time after the shipment had been intercepted by Customs and flour substituted for the drugs, and after the stools had been delivered to a house in Sydney. The prosecution case was that the respondent had assisted and encouraged the endeavours of Simpson to take delivery of the consignment of pseudoephedrine at the house, by agreeing to conduct counter-surveillance of the house on the morning of the delivery of pseudoephedrine and by driving the importer to the house where the stools were collected. Based on those facts, the trial judge directed an acquittal. His decision turned on the fact that, by the time the respondent was involved in the criminal enterprise, the drugs had been substituted with flour. Accordingly, having regard to the fact that the respondent only became involved in the enterprise when the furniture had arrived at the house, he could not be convicted of aiding and abetting a completed offence.
McClellan CJ at CL (with whom Davies J agreed)[164] upheld the decision of the trial judge:[165]
To my mind the conclusion of the trial judge in the present case was correct. Although the acts of Simpson, including his retrieval of the furniture items, were acts in furtherance of the primary offence, by the time the respondent became involved it was impossible for the respondent to do any act which could ‘aid, abet, counsel or procure’ the commission of that offence. Although I would conclude that the respondent intended by his actions to assist Simpson to take possession of the drugs, this was made impossible by their substitution with flour (Simpson, of course, was implicated in the primary offence because of his role as the importer before the drugs were substituted with flour). It may be, as the trial judge identified, that the respondent could have been successfully charged with an attempt to commit an offence, probably the offence of attempting to possess. But his actions could not constitute the offence of aiding and abetting the importation of the drugs.
[164]Nolan (2012) 83 NSWLR 534, 554 [114].
[165]Ibid 542 [37].
Notwithstanding his ultimate conclusion in Nolan, McClellan CJ at CL was of the view that Calderwood was applicable to the construction of s 233BAA(4) of the Act.[166] That said, although his Honour (and Davies J) may not unreservedly have embraced the reasoning in Campbell,[167] it does not seem to me that the court in that case ultimately declared Campbell to have been wrongly decided.[168] Campbell was, however, followed by the South Australian Court of Criminal Appeal in Toe[169] and Tranter.[170]
[166]Ibid 541 [28], [32].
[167]See ibid 539–40 [18]–[23].
[168]Although, see ibid 540 [23]–[24], 541 [30] (McClellan CJ at CL); 545 [62] (Rothman J).
[169]R v Toe (2010) 106 SASR 203 (‘Toe’).
[170]R v Tranter (2013) 116 SASR 452 (‘Tranter’).
In Toe — a case decided before ‘import’ was given a more expansive definition in the Criminal Code (Cth) — the appellant was convicted of two counts of importing a marketable quantity of a border controlled drug pursuant to s 307.2 of the Code. The principal issue at trial was whether the appellant ‘imported’ the drugs. Essentially, the evidence disclosed that the AFP intercepted some packages from overseas at Sydney Airport. The packages, which contained heroin and cocaine, were addressed to a house in South Australia. After an unsuccessful controlled delivery to that South Australian address, the police intercepted a telephone call by the appellant to a courier in which he arranged for the packages to be collected by the courier and delivered to him. The appellant was arrested at his home on the day that he took possession of the packages. At trial, the judge directed the jury that they could find that the appellant had imported drugs if they were satisfied that he had done ‘acts that are part of the import of drugs’. The judge further directed that, for the purpose of considering whether the appellant had done some act that was part of the importation of drugs, the jury should regard the process of the importation of the drugs as continuing until they were delivered to a point resulting in them remaining in Australia.
The court in Toe (Bleby and White JJ; Gray J dissenting) held that the jury had been misdirected. In so holding, Bleby J made a number of pertinent observations concerning the ‘consequences of Campbell’:[171]
[171]Toe (2010) 106 SASR 203, 223–5 [70]–[78] (citations in original).
Intermediate appellate courts and trial judges in Australia should not depart from decisions of intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or of uniform national legislation unless they are convinced that the interpretation is plainly wrong.[172] Given the unanimity of reasoning of the court in Campbell I consider that this Court is obliged to follow it. I am not convinced that the reasoning is plainly wrong. With respect I agree with it.
As I have already said, it was only necessary in Campbell to define when the acknowledged importing ended in order to establish the time at which it was necessary for the appellant to be shown to have formed the necessary intention to import the substance. The same can be said of Calderwood, in that there was abundant evidence on which the jury could find that the appellant had engaged in the physical element of importing. If it were necessary to do so in this case I would be constrained to hold that the importing of the border controlled drugs ceased at the time when they were removed in their entirety by the police. They had arrived in Australia from abroad. They had reached the point which would ‘result in the goods remaining in Australia’,[173] albeit that, without the intervention of the police, the importing may have continued until delivery to the person who claimed to be the consignee. However, in the circumstances of this case it is not necessary so to decide.
Campbell requires that the word ‘import’ be given its ordinary and natural meaning in the context of the provisions of the Code. That is consistent with recent High Court authority[174] which requires that the word be given its ordinary grammatical meaning, having regard to the context and legislative purpose of the statute. As the reasoning in Campbell indicates, the meaning of ‘import’ in the Code is a narrower meaning than the concept of ‘importation’ as it was used in s 233B(1)(d) of the Customs Act, and which was, in my view, incorrectly applied by the court in Calderwood.
Neither Calderwood nor Campbell was concerned to define what physical elements constituted importing. The principal issue in this case was whether the physical elements of importing had been proved. Proof that the appellant was ‘concerned in the importation’ was not enough. It had to be shown that he ‘import[ed]’ the packages and their contents. By definition[175] that could include bringing into Australia. There was no suggestion that the appellant did that. The bringing in was effected by the crew of an airline on its behalf. But to import has a wider meaning, as the inclusory definition implies. It would include the conduct of the person who arranges or causes the goods to be imported. That person may be within Australia or may be in a foreign country.
If I import an article I may merely sign a request or authority to a consignor, or merely make a telephone call or request a shipper to dispatch the goods to an address in Australia. I may ultimately receive the consignment note which authorises me to collect the goods in Australia. On the other hand, I may request that the goods be sent to someone else or authorise someone else to collect the goods. In any of those cases all I have done is make a request to a consignor, a transport company or an airline to bring the goods into Australia and to arrange for their collection or delivery. In any of those cases, if the goods are brought into Australia, I have imported the goods. I am an importer.
It does not matter if or when, after physical importation, the process is interrupted. I am still the importer, having caused the goods to be imported.
Mere proof of my involvement in collection of the goods, if that be the case, does not prove that I am the importer, although my activity in that regard may be circumstantial evidence tending to prove that I was the importer. Therefore, attempts to define when importation ceases are somewhat artificial and irrelevant.
Such was the position in this case. One of the issues in this case was whether the existence of the physical element of importing by the appellant had been proved. The question that the jury had to determine was whether it had been established beyond reasonable doubt that the appellant engaged in the conduct (the physical element) of importing, namely, the doing of an act or acts which constituted the bringing or arranging or procuring of the bringing of the border controlled drugs into Australia. As to the physical element of import, the jury should have been directed accordingly. The jury was not asked to consider that question.
The ordinary and natural meaning of ‘import’ which I adopt derives support not only from the context of the Criminal Code but from other common law authorities.[176]
[172]Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [35] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 84 ALJR 1; [2009] HCA 47 at [51] Gummow, Heydon and Crennan JJ, at [63] Hayne J agreeing.
[173]Campbell v The Queen (2008) 73 NSWLR 272; [2008] NSWCCA 214 at [128].
[174]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [4] French CJ, at [47] Hayne, Heydon, Crennan and Kiefel JJ.
[175]Criminal Code, s 300.2.
[176]Bleby J then referred to a decision of the Supreme Court of Canada, Bell v The Queen [1983] 2 SCR 471, and of the New Zealand Court of Appeal, R v Hancox [1989] 3 NZLR 60.
White J said of the meaning of ‘import’:[177]
The word ‘import’ is defined in an inclusive way in s 300.2 of the Code as follows:
‘import’ includes bring into Australia.
Modern dictionaries define the verb ‘import’ to mean ‘to bring in from a foreign country’ (Macquarie Dictionary) or ‘to bring in; to introduce from abroad’ (Shorter Oxford English Dictionary). The word can also mean ‘to cause to be brought in from a foreign country’: see the definition from the Oxford Dictionary discussed by Higgins J in Wilson v Chambers & Co Pty Ltd[178]and by Gibbs J in R v Bull.[179]
The authorities concerning the word ‘imports’ and its cognates tend to reflect these dictionary definitions. The authorities also indicate the importance of context in the ascertainment of the proper meaning of the word ‘imports’.[180]
[177]Toe (2010) 106 SASR 203, 255 [199]–[201].
[178]Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131, 146.
[179]R v Bull (1974) 131 CLR 203 at 254. See also Campbell v The Queen (2008) 73 NSWLR 272; [2008] NSWCCA 214 at [39] per Weinberg AJA.
[180]Campbell v The Queen (2008) 73 NSWLR 272; [2008] NSWCCA 214 at [48]–[50], [138].
When discussing Campbell, White J said:[181]
In the course of his reasons, Spigelman CJ referred to the earlier decision of the Court of Criminal Appeal in New South Wales in Calderwood v The Queen.[182] In that case, which concerned s 233B(1)(b) of the Customs Act, the court adopted a wide view of the activity of importing, holding that it continued during the period that the person doing the importing was ‘trying to get his hands on the goods’. Spigelman CJ in Campbell distinguished Calderwood on the basis that the reasoning in the latter had used the terminology of ‘importing’ as equivalent to ‘importation’, and that the word ‘importing’ was not used in s 307.11(1)(a).[183]
On the present appeal, counsel for the respondent submitted that the basis adopted by Spigelman CJ for distinguishing Calderwood was unsound, as s 233B(1)(b) of the Customs Act did not use the word ‘importing’ (as he submitted Spigelman CJ had supposed), but instead the word ‘imports’. As the same verb was used in s 307.11(1)(a) there was, he submitted, no basis for the distinction adopted by Spigelman CJ. It is not altogether clear to me that Spigelman CJ did overlook the difference in the statutory language, as counsel for the respondent submitted. However, even if he did, this Court should follow the meaning given to the expression ‘the person imports … a substance’ adopted in Campbell unless satisfied that that interpretation is plainly wrong.[184]
I do not consider that Campbell is plainly wrong. Although the decision in Campbell is not decisive of the issue arising on this appeal, it does indicate that the verb ‘imports’ in s 307.2(1)(a) is to be given a precise rather than expansive meaning and, as noted earlier, that the activity of importation for the purposes of the section is completed when the drugs are delivered at a point which will result in them remaining in Australia.
In my opinion, the decisions of the High Court in Bull, Wilson v Chambers and Granite Arms[[185]] are of most assistance in resolving the principal question on this appeal. However, regard must also be had to the context of s 307.2(1)(a). In this respect the reasons of Spigelman CJ are persuasive.
In my opinion, both the language of Div 307 of the Code, its context and purpose, and the authorities, indicate that a person imports drugs within the meaning of s 307.2(1)(a) if the person introduces the drugs into Australia from abroad. That conduct occurs most obviously when the person brings the drugs into Australia or, alternatively, causes them to be brought into Australia but the activity of importing drugs is not confined to conduct of these kinds. It may also occur when a consignee engages in the conduct, or masterminds the conduct, of collecting or retrieving drugs which have been landed in Australia. Campbell indicates that the activity of importing for the purposes of s 307.2(1)(a) of the kinds just discussed is completed when the drugs, having been landed in Australia, are delivered at a point which will result in them remaining in Australia.
[181]Toe (2010) 106 SASR 203, 259–60 [217]–[221] (citations in original).
[182]Calderwood v The Queen (2007) 172 A Crim R 208; [2007] NSWCCA 180.
[183]Campbell v The Queen (2008) 73 NSWLR 272; [2008] NSWCCA 214 at [100].
[184]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 84 ALJR 1; [2009] HCA 47 at [51].
[185][Chief Executive Offıcer of Customs v Granite Arms Pty Ltd (2005) 222 CLR 149.]
Campbell was considered — and, so it seems to me, endorsed — in Tranter.[186] It is, however, unnecessary to attempt to further analyse the reasons in Tranter.
[186]Tranter (2013) 116 SASR 452, 472–3 [82]–[84], 482 [123] (Peek J, with whom Kourakis CJ agreed in the result). (White J agreed ‘with many of the conclusions of Peek J’: ibid 455 [2], [4].)
Presumably, had Parliament desired the term ‘import’ in the Customs Act 1901 (Cth) to bear the same meaning as that term in the Criminal Code, Parliament would have evinced that intention clearly and unequivocally. Parliament had, after all, amended the definition of ‘import’ found in the Criminal Code so as to overcome the perceived mischief flowing from Campbell, yet had left the provisions of the Customs Act undisturbed. In those circumstances, it is difficult to conclude that the legislature desired the term ‘import’ as employed in the Customs Act to bear the same meaning as the term ‘import’ as used in the Criminal Code.
I agree with the observation of Weinberg AJA in Campbell that, as a matter of ordinary usage of language, the term ‘imports’ seems to have implicit within it the idea of both a beginning and an end. In my opinion, consistently with authority, for the purposes of s 233BABAD(1) of the Act, a person ‘imports’ tobacco products when they are brought from a place outside Australia into Australian territory and the carriage of the tobacco products is ended, or the continuity of their carriage is broken, so as to result in them remaining in Australia. Thus, the activity of importation is complete when the tobacco products are delivered to a point which will result in them remaining in Australia. Typically that point will be when the tobacco products are delivered to their intended recipient or consignee.
Answers to the reserved questions
In light of the above, based on the case stated by the trial judge, there is evidence capable of supporting the conclusion that Mendez was a party to an agreement to ‘import’ the tobacco products in the two containers within the meaning of s 233BABAD(1) of the Customs Act 1901 (Cth). The second reserved question should be answered accordingly. As to the first reserved question, the jury should be directed in accordance with the contents of the immediately preceding paragraph of these reasons.
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‘documents’ include:
(a)any paper or other material on which there is writing; and
(b)any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and
(c)any paper or other material on which a photographic image or any other image is recorded; and
(d)any article or material from which sounds, images or writing is capable of being produced with or without the aid of a computer or of some other device.
3
18
0